# Content-Based Computer Crimes

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## Course Certificate

## Freedom of Expression

In addition to all of the good uses to which computers have been used, sadly, computers can be and are used to transmit, store and display images of child pornography. Government attorneys should be familiar with the law in this area so that they can advise on the appropriate courses of action to take when government computers are improperly used for such purposes. We will now briefly review a couple of federal statutes in this area.

## Freedom of Expression (contd.)

The first statute we will turn to is the Child Pornography Protection Act. It was passed in an effort to keep up with technological ways of producing virtual child pornography. Specifically, 18 U.S.C. Section 2256(8)(B) included in the definition of "child pornography," "such visual depiction is, or APPEARS TO BE, of a minor engaging in sexually explicit conduct." Section 2256(8)(D) added the words "such visual depiction is advertised, promoted, presented, described, or distributed in such a manner that CONVEYS THE IMPRESSION that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct."

## Free Speech Coalition Case

In the case Ashcroft v. Free Speech Coalition, an adult-entertainment trade association contended that provisions of the Child Pornography Prevention Act prohibiting any visual depiction that appeared to be of a minor engaging in sexually explicit conduct," or conveyed the impression that the image depicted a minor engaging in such conduct, were overbroad and, thus, unconstitutional, as a violation of the First Amendment. The Supreme Court ruled with the trade association and held that the prohibitions of these sections were overbroad and, thus, unconstitutional. This means that prosecutors will generally have to prove that an image is of an actual child.

## The PROTECT Act

On April 30, 2003 the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003, also known as the PROTECT Act, became law. By this Act Congress has tried to legislatively carve out a class of virtual child pornography that could still be prosecuted and therefore legislatively overturn, at least in part, the Supreme Court’s ruling in the Free Speech Coalition case discussed previously. Congress has done so by proscribing the depiction of child porn that is “indistinguishable” from that involving an actual minor. The law states that "the term ‘indistinguishable’ used with respect to a depiction, means virtually indistinguishable, in that the depiction is such that an ordinary person viewing the depiction would conclude that the depiction is of an actual minor engaged in sexually explicit conduct." This definition does not apply to depictions that are drawings, cartoons, sculptures, or paintings depicting minors or adults.

## CIPA

The next act we will address is the Children’s Internet Protection Act, or CIPA, codified at 47 U.S.C § 254. The act is an effort to regulate computer access to adult-oriented Web sites in libraries and public schools. In order for public schools and libraries to receive discount rate Internet service, they must certify they have installed filtering software preventing access by minors to obscene or pornographic depictions deemed harmful to children. Select the link to read CIPA.

## Adult Pornography

Adult pornography poses another problematic misuse of government computers. While improper, the Military Criminal Investigative Organizations, or MCIOs, will generally not investigate it. This is because MCIOs generally only investigate felonies, and most adult pornography cases do not rise to that level. Attorneys should consider advising commanders of appropriate administrative actions in such cases. For example, in a recent case, the Army chose Article 15, non-judicial punishment, proceedings as the appropriate method of dealing with an officer who stored adult pornography on his government computer.

## Introduction to Intellectual Property

Copyright law, patent law, trademarks, and trade secrets cover the field of intellectual property. They are not of broad concern in the military, except for the occasional cases where civilian intellectual property rights are violated by unauthorized use of copyrighted material, or the unauthorized sharing of music or videos through peer-to-peer software. This topic gives you a brief overview of these areas.

## Copyrights

Generally, copyright law protects the expression of ideas. That expression usually must be original and fixed in some medium. See Title 17 of the United States Code, also known as the Copyright Act, available through the icon on the screen. Because computers make it very easy to duplicate copyrighted works and the Internet makes it very easy to distribute or receive copyrighted works, violations of copyright law in cyberspace are common.

## Copyright Issues

DoD attorneys may need to provide broad guidance in this area to protect the DoD from potential liability for copyright infringement. Thus, if it comes to the attention of DoD attorneys that a unit has purchased a single license for a software product but has subsequently made multiple unauthorized copies of the software for others in the unit, the DoD attorney should provide guidance as to the legal ramifications of such activity. Likewise, DoD attorneys should be wary of the use of government computer systems and networks to post, copy, or transmit copyrighted works in violation of the Copyright Act.

## Copyright Law

DoD attorneys should become familiar with the "Fair Use" exception, 17 U.S.C. § 107, since it is often cited as a basis for what otherwise would appear to be copyright violations, though it is not always applicable. Claims against the Federal government for copyright infringement are generally governed by 28 U.S.C. § 1498.

## Check on Learning

Choose the correct response to the question.

## Patent Law

Patent law is governed by Title 35 of the United States Code. Until recently, this was unlikely to arise as a common issue in cyberspace. Claims against the Federal Government for patent infringement are generally governed by 28 U.S.C. § 1498.

## Trademarks

Trademark law can be an especially complex area since both federal and state laws may apply. For the Federal law see generally, 15 U.S.C. Sections 1051 through 1127. Attorneys should review the propriety of the use of trademarked symbols and names on Government Web sites.

## Intellectual Property Summary

As the World Wide Web provides increasing access to art, music, and other intellectual properties, we see an increasing concern by owners of those properties. This concern may be reflected in a more complex and more rapidly shifting legal environment for intellectual properties over the next few years. Time will tell how important this area will be for you.

## Trade Secrets

As DoD increasingly moves to paperless contracting it becomes increasingly likely that proprietary and trade secret information may be transmitted by private companies to Government computers. Attorneys who work in this area should advise their clients of the potential liability faced by the Government in the event such information is not properly protected from unauthorized disclosure.

## Law in Cyberspace Summary

If you completed all the other topics, this completes the Law in Cyberspace Module. You should have a broad familiarity with the body of law dealing with Constitutional issues, the USA PATRIOT Act, criminal offenses, limits on criminal investigations, lanes of the road, and intellectual property. This is an evolving area of the law; use the references to keep up with the changes. If you need a certificate to indicate completion in your training record, use the "Print Certificate" button in the upper right corner of your screen. Have your supervisor sign the certificate.